Crow v Wood

is an English land law case, confirming an easement commonly exists for the right to have a fence or wall kept in repair expressed in earlier deeds, which is a right which is capable of being "granted" by law and secondly, as a separate but on the facts, related issue, of the right of common land pasture asserted by continued use.

Facts

Mrs. Edna Crow of Stone House Farm sued Mr. Robin Wood of Wether Cote Farm for cattle/chattel trespass due to his sheep straying onto her land. She lived on a Yorkshire moor, which was once in common ownership where sheep had the right to stray. Some parcels were eventually sold off, but several shepherds such as the defendant Wood maintained their straying flocks. In 1966, the plaintiff Crow ceased to keep up a fence around her land. Wood claimed that under an implied grant under common law and section 62 of the Law of Property Act 1925 she was under a duty to keep up the fences separating her private land from the commons.
Judge awarded £205 damages and an injunction, and Mr Wood appealed.

Judgment

Lord Denning MR held that the right to have a fence repaired "lay in grant", and so could pass under Law of Property Act 1925, section 62. Further, the right to have a fence or wall kept in repair is considered by the law "in the nature of an easement". Since the plaintiff was in breach of her duty to fence she could not complain of cattle trespass.
Edmund Davies LJ stated that the duty to fence arises from proof that the land is accustomed to be fenced. This was strongly disapproved in the same court, five years later.

Followed by

Haddock v Churston Golf Club EWHC 347

Obiter dictum of Edmund-Davies

This was disapproved in:

Egerton v Harding QB 62, CA